Law Articles 2011 - Commercial Law, Trademark and Intellectual Property July-August 2011
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Law Articles - July-August 2011

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The following articles were gratefully supplied by Dilanchian Lawyers and Consultants - Intellectual Property and Innovation Professionals.


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IP Law

IP valuation, tax and 5 benefits of IP Registers

Friday, 19 August 2011
No accountant, business lawyer or executive in business can afford to be clueless about intellectual property ("IP") law. Every business has some IP, eg its name. Yet few know the many benefits of intellectual property registers, or even what they are. Here's an introduction.

For real property there are central registers storing information useful for legal work. They are used for real estate transfers, leasing and other transactions.

For IP there is no one central register for all IP owned by a business or other organisation.

Yes, there are central government registers for patents, designs, plant varieties, and some trade marks. There are also registers for business names and domain names.

Avoid trademark registration for that brand!

Wednesday, 10 August 2011
Every day the Australian trade marks register, business names registers and ASIC company register is littered with new appalling names and logos.

If branding is so important, how come so few do it well?

Ponder the top 10 lists below of what branding is, and is not.
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Patent law and IP strategy rule, despite the noise

Tuesday, 09 August 2011
Discussions about law are never free of politics. Some areas of law become overun by politics. It's then foolish to discuss them using only the lenses of policy, governance or legal principles.

Patent law for online software, copyright law for traditional entertainment industries, and trade mark law relating to tobacco labelling are current areas of intellectual property law overrun by politics or public policy.

Law making in the U.S. for patents resembles a zoo for some commentators. A recent account of the debates and haggling over proposed U.S. patent law changes appears in the Huffington Post report: The Spoilsmen: How Congress Corrupted Patent Reform. Published on 4 August, it has attracted 2,167 comments so far.

IP strategy and IP legal modelling

Monday, 08 August 2011
Consultancy businesses survive on the quality of their insights and advice. Therefore every year consultants and advisers invest in re-inventing or creating new intellectual property ("IP").

Consultancy firms have special needs for the protection of their IP and legal position generally. Consultants share IP, a great deal of it is know-how. They share it with clients, employees, contractors and partners.

How do they stop going backwards when the people they work with seek to profit from unauthorised use of the IP? How can consultants protect their IP investment?

When people pull in the same direction to build IP a virtuous circle of trade is formed. This can reduce costs and turn-around times and standardise quality. Clients and others benefit.

MOU or contact, which suits?

Thursday, 04 August 2011
An MOU is a tool for deal making, relationship formation, and business structuring. It is used by companies, not-for-profit organisations, and governments. Although a memorandum of understanding ("MOU") has no specific status in law, it's a very useful tool when drafted well.

There are many situations in which MOUs are used and in which they are very effective and suitable as compared to the alternatives. A choice is often made by clients in consultation with a business lawyer between drafting an MOU, or a contract, deal memo, terms sheet, or heads of agreement.

Intellectual property and digital media futures

Saturday, 30 July 2011
The business of intellectual property is about the future.

IP assignments and investments are made and IP licences acquired largely in the hope of maintaining or creating revenues in the future.

Clients pay IP lawyers and patent attorneys for the clarity of their vision of future developments in law and technology.

Such professional futurism is a formal area of study in engineering - technology forecasting.

Litigation lawyers need your e-files

Friday, 29 July 2011
Australian businesses are at risk if they do not know that electronic document management and retention is essential for victory in litigation that involves more than 200 documents.

Rarely do we come across small businesses that keep up-to-date document lists, databases or repositories. Some don't have even a standardised system for giving files a title or date.

If you received court documents next week is your business ready for mandated electronic litigation? If you are not ready, legal costs will be higher for the IT litigation support services below.

E-discovery
Digital forensics - for pattern analysis, mobile use, computer breach, malicious attacks, use of social media and internet, Anton Pillar orders for electronic evidence seizure, and data recovery and collection
Electronic files conversion, for example mailbox extraction (PST, Lotus Notes, Microsoft Exchange)
Virtual data room
Document handling - printing, scanning, coding, barcoding, and data entry
Courtroom technology set-up

Win business by crossing the chasm

Thursday, 28 July 2011
When a newish product is first launched it can acquire an initial round of customers or adopters. These customers tend to be enthusiasts or visionaries. They are the product's early market.

To sustain that initial growth the product must reach more customers. They may not have heard of the product or they may just be holding back from buying anytime soon. These prospective customers are pragmatists or conservatives.

In numbers there's more of them than enthusiasts or visionaries... much more. Getting them to reach out for the product involves what author Geoffrey A. Moore has phrased as "crossing the chasm". If the crossing is successful then generally more growth follows.

Moore's focus is on high-tech products. My experience is the analysis applies to other product types as well.

Innovation is not a useful word

Sunday, 24 July 2011
Followers of fashion and implementers of surface-level change are unlikely to achieve innovation, invention and creativity in business.

If its still hyped as "innovation" likely failure may fatigue your people. Over the years we've seen many lists of innovation leaders, such as the BusinessWeek special report "World Most Innovative companies".

Mobile app statistics and law in Australia

Tuesday, 19 July 2011
Which types of apps do people use most on their mobiles? This is revealed in the Telstra 2011 Smartphone Index. It prompts this question: How did the smartphone, mobile device and app market take off, and more importantly, where is it heading?

Statistics on emerging opportunities in mobile markets are useful to us as IT and mobile phone app lawyers. They are re-shaping the financials, workflow and futures of a huge range of industries, among them software developers.

As our hyperlinks in this article indicate, since 2006 we've closely monitoring mobile market developments in Australia so as to give timely advice to our clients.

Debt recovery made easy

Tuesday, 19 July 2011
If you are a small businesses, like many you may be unprepared when you seek a lawyer to issue a letter of demand or debt recovery legal action.

If you are like many small businesses, you'll have one major problem making it difficult to recover debts. It's a problem that has an affordable solution in three moves. The solution prevents the problem. It's a problem that exists before the small business goes to a lawyer to ask for a solicitor's letter or court case work.

Trade marks portfolios need brand architecture

Tuesday, 19 July 2011
Does your business have brands, packaging and trade marks in different styles? Do they send different marketing messages, lacking integration? Integration improves legal protection for brands, names, logos, tag lines and other ID. Here's how.

Years ago I stumbled onto a solution, the concept of "brand architecture".

This happend while doing legal research for a client with a portfolio of trade marks in different styles and sending different messages. It was a mess, little integration in design and hence lowering the level of legal protection.

Domain names & IP protection

Thursday, 14 July 2011
Do nothing if you receive an unsolicited email for a domain name registration in China. The message of the email will read like friendly advice. It's not. It's a scam.

The email will claim that someone has applied to register an identical domain as yours in China. Ignore. It's bull.

This China domain name scam continues. The authors may not even be from China. I first wrote in 2007 about this scam in Domain name scam made in China.

41 start-up stories from an IP business lawyer

Wednesday, 13 July 2011
If you are an entrepreneur or start-up or developing the concept for a new business you know you'll find guidance and inspiration in how others have succeeded or failed. Their stories are inspiring biographies or valuable insights.

So what guidance and inspiration can you expect from your lawyer or accountant?

As a lawyer specialising in helping start-ups and SMEs, I've written 41 of these stories as one of my ways of providing guidance free-of-charge. Clients who call say they understand and appreciate what I've written.

Commercialisation of technology needs dreams and contracts

Tuesday, 12 July 2011
Entrepreneurs see advantage where others don't. They seize advantage by aligning people and resources to their vision. The bolder the vision, the greater the need for commercialisation strategy, business process, financial modelling and contracts.

Here's a story of one such entrepreneur. In 2003 a tall and lanky engineer came with his rucksack to the Dilanchian Lawyers & Consultants office for a meeting.

One of Australia's largest mining and steel production companies had paid him for his consulting time for a hydrogen diffusion system in steel production. It insisted on not paying for his intellectual property (IP) created in inventing technical designs and solutions.

Intellectual property law secures abstractions

Thursday, 07 July 2011
A web article comment today via Find Lawyers from a "petrovyoung" reminds me how abstract and concrete thought can be two sides of the same coin. In practical terms it is a reminder also that clients should often have very open conversations with their lawyers about what precisely is their intellectual property.

Without open conversations clients and their lawyers can settle for mundane IP. This won't get them very far, but can give the client pipe dreams and earn the lawyer money. Every week we come across poor brands and domain names, crap patent applications, or mediocre materials from which people imagine they can build a copyright-based business.
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Wikipedia: Built free, open and with law

Tuesday, 05 July 2011
Free and open are concepts which have become normal in entrepreneurial or internet businesses. Consider "free" software, "open" source software and "open" innovation. How each works commercially is worth investigating for internet entrepreneurs and businesses seeking fresh approaches. They are alternatives to "paid and closed" business practices.

Wikipedia is our case study for this investigation. How did Wikipedia arrive at its combination of free (content) and open (Wiki)? Which lightbulb moments turned it from an investment drain to a viable, funded operation?

Jimmy Wales co-founded Wikipedia. Born in 1966, he grew up in Huntsville, Alabama in a family that appreciated the World Book Encyclopaedia and learning. Under the direction of his mother and grandmother, Wales enrolled at Auburn University at the age of 16 and studied finance. He obtained a masters and entered the Ph.D finance program while also teaching university students. In 1994 he applied this academic background in finance by taking up a position as an employee in a Chicago futures and options firm.

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